Railroad Commission v. So. Ry. Co. , 127 S.C. 15 ( 1924 )

This matter is before us on a petition by the Railroad Commission of South Carolina, for mandamus, to compel compliance by the Southern Railway Company with an order of the Commission, dated March 14, 1923, requiring said company to construct certain passenger sheds at Blackville, S.C. a station on its line. There has been no order made by the Interstate Commerce Commission with reference to the erection of such sheds. The evidence has been taken and reported by the special referee; and from such evidence it appears that the erection of such sheds is desirable as a protection to the health of passengers boarding, or leaving, or changing, cars at this station. The cost of the erection of such sheds as are ordered is $800, or of better sheds preferred by the respondent is $1,600.

Blackville is one of the oldest, and more important, stations on the original line of the old South Carolina Railroad, built over 80 years ago, then the longest railroad in the United States, extending from Charleston, through Aiken, S.C. to Augusta, Ga., where connections were later made with railroads toward the west. For the first 45 of these years, Judges and other traveling men, attending the Courts, or having business in Barnwell village, left and took the cars at Blackville — making the 10-mile trip to Barnwell in a hack, over a sandy road, in two hours, as did others from beyond the Edisto River, attending the markets in Augusta or Charleston, or on calls of business or pleasure at way stations. About 1881 Whilden Woodward built the Barnwell Railroad (now, like the old South Carolina, owned and operated by the respondent), affording rail connection between Barnwell and Blackville, and putting Jim Roby's hack line out of business. In the 70's the Port Royal Railroad, now the Charleston Western Carolina, had been built from Port Royal, S.C. via, Allendale, S.C., 17 miles south of Barnwell, to Augusta, Ga., crossing the Charleston Savannah Railroad (now owned and operated by the Atlantic Coast Line Railroad Company) at Yemassee, opening up a rival rail route between Augusta and Charleston, and making Savannah accessible as a new market for this territory.

About 1890, the South Bound Railroad, now owned and operated by the Seaboard Air Line Railway, was built from Columbia to Savannah, crossing the old South Carolina Railroad at Denmark, then known as Graham's Station, 9 miles east of Blackville. It was originally proposed to make the Barnwell railroad a link in the South Bound, but its then owners demanded what the projectors of the South Bound thought an exorbitant price, so they built their line to parallel the Barnwell road. Upon this being done, the owners of the Barnwell Railroad extended that road to connect with the Charleston Western Carolina at Allendale dale on the south, and for some 20 miles to Wagener, in the direction of Batesburg on the north, and did a magnificent business, getting competitive rates over the South Carolina Georgia Railroad at Blackville, and the Charleston Western Carolina at Allendale, between all points on the Barnwell road, then known as the Carolina Midland, and the cities of Charleston, Augusta, and Savannah. Then, about 1900, the Southern Railway Company acquired ownership and control of both the South Carolina Georgia, and the Carolina Midland Railroads, and in order to compete with the Seaboard Air Line Railway, for the traffic between Florida and the north, constructed a short line between Cayce and Perry, on the Carolina Midland, and extended the latter road from Allendale to Hardeeville, on the Charleston and Savannah Railroad, thus forming its present line from Columbia through Blackville to Savannah, over which it attempted for a few years to operate one or two through passenger trains in competition with the Seaboard Air Line Railway for passenger traffic between Florida and the north. This competition has been abandoned, and the respondent is now operating through trains from the west to Columbia, where they turn over the Pullmans to the Seaboard for transportation over the old South Bound for Jacksonville and points to the south through Savannah. Only one passenger train each way daily is now operated by respondent over its line between Columbia and Savannah. Only one passenger train each way daily is now operated by respondent over its line between Columbia and Savannah (see schedule, Exhibit M, opposite page 50 of case), and one other between Columbia and Allendale only. The train from Savannah connects with a northbound train of the Southern at Columbia. Both trains passing Blackville on the line between Allendale and Columbia connect with trains between Charleston, or Branchville, and Augusta (see schedules, Exhibits L and M). The number of passengers so transferring at Blackville from one line to the other is not definitely shown by the evidence — nor the exact proportion between intrastate and interstate passengers. The Chief Engineer of the respondent when asked, answered: "I have no figures on that." The superintendent of respondent testified:

"Both lines are used to a considerable extent for interstate travel. A preponderance of the business is interstate; I wouldn't say passenger, but freight. Of course, it is used for both."

He testified to the sale of passenger tickets at Blackville, and says:

"The intrastate tickets amounted in value to $12.200; while the interstate tickets (which we may reasonably assume were for longer distances and larger items) were $5,200."

He added:

"We have no figures on passengers boarding the trains at way stations between Branchville and Aiken, and going to way stations on the other line."

The respondent's Chief Engineer testified.

"The record of ticket sales is kept for individual stations, and the only way you could get a record of passengers from other points would be to investigate the station account of every station on the system. * * * It would be impracticable to keep such a record for any particular transfer point. They would have a record that would show interstate as distinct from intrastate at any particular station, and Mr. Hudson gave such a figure for the sale of tickets from Blackville."

Such records were probably used by the company in making up its annual report to the Railroad Commission for the year ending December 31, 1922, sworn to May 1, 1923, which states that the revenues earned by respondent from the operation of all its lines within this State, during that year were from passenger traffic, $4,201,638.84, divided into intrastate passenger traffic, $1,733,158.74, and interstate passenger traffic $2,468,480.10; and that the revenues earned by it within this State, from freight traffic was $13,266,507.15, divided into intrastate freight traffic, $2,329,446.90, and interstate freight traffic, $10,937,060.25. These figures are to be found in the annual report of the State Railroad Commission for the year 1923.

The evidence, without any reference to the above report, which corroborates it, shows as a necessary inference that the greater number of passengers boarding, leaving, and transferring between trains on the lines of respondent's railroads at Blackville are intrastate passengers, and that the sheds ordered erected are reasonably necessary for the protection of their health, and that the cost of their erection, and expense thereby added in the operation, maintenance, or capital account of the railroad is so small in comparison with its revenues from intrastate traffic in this State as not to constitute a direct or undue burden upon interstate commerce.

As to the objection, that the Federal Transportation Act of 1920 (41 U.S. Stats. L., 456; Fed. Stats. Ann., 1920, p. 98) deprives the State Railroad Commission of jurisdiction to make the order, sought to be enforced, we must remember the admonition of Mr. Justice Holmes, in Brownv. Walker, 161 U.S. 591; 16 Sup. Ct., 644;40 L.Ed., 819:

"Great constitutional provisions must be administered with caution. Some play must be allowed for the joints of the machine."

Therefore the Transportation Act, § 402 subd., 17 (U.S. Comp. St. Ann. Supp., 1923, § 8563 [17]), provides:

"Nothing in this Act shall impair or affect the right of a State, in the exercise of its police power, to require just and reasonable freight and passenger service for intrastate business, except in so far as such requirement is inconsistent with any lawful order of the Commission made under the provisions of this Act."

This provision is intended to guard the reserved rights of the states over intrastate commerce, and is no more embarrassing to the national administration of interstate commerce than the admitted rights of the states to prescribe intrastate rates, which do not discriminate against, nor burden, interstate commerce.

The Federal Transportation Act should not be construed to prevent the state from exercising its police power to require adequate local facilities for intrastate passenger traffic, reasonably necessary for the protection of the health of the passengers (N.Y., etc., R.R. Co. v. N.Y., 165 U.S. 628;17 Sup. Ct., 418; 41 L.Ed., 853. Barrett v. N.Y., 232 U.S. 14; 34 Sup. Ct., 203; 58 L.Ed., 483), in accordance with the principles laid down in Chicago, B. Q. Ry. Co. v. Wis. R.R. Comm., 237 U.S. 220, 226;35 Sup. Ct., 560; 59 L.Ed., 926. St. Louis San FranciscoR.R. Co. v. Public Service Com., 254 U.S. 535;41 Sup. Ct., 192; 65 L.Ed., 389; and later case, with same title, in43 Sup. Ct., 381; 67 L.Ed. — . See opinion of the North Carolina Court in North Carolina Corp. Com v. So. Ry.Co., 117 S.E., 563.

For these reasons above stated, I concur in the opinion announced by the Chief Justice, and of Circuit Judge Memminger.

MESSRS. JOHNSON, MEMMINGER and SHIPP, Circuit Circuit Judges, concur.